The Free Speech Puzzle

Thanks to a ruling last week by Australia’s High Court, smokers in that country soon won’t be able to pick up a pack of cigarettes without seeing what Advertising Age magazine calls “nauseatingly graphic pictures” of what their habit is doing to their bodies.

Thanks to the United States Supreme Court’s recent First Amendment jurisprudence, chances are slight that American smokers will ever be bothered – or deterred – by comparable graphic reminders.

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Six months ago, in a case now on appeal, a federal district judge in Washington, D.C. struck down a Food and Drug Administration cigarette packaging rule that requires the top half of a cigarette pack’s front and back panel to be covered by one of nine similarly graphic images: a smoker exhaling through a tracheotomy hole, for example, or a close-up of a mouth with cancerous lesions, or a pair of diseased lungs.

“The Government’s interest in advocating a message cannot and does not outweigh plaintiffs’ First Amendment right to not be the Government’s messenger,” Judge Richard J. Leon wrote.

However the appeals court eventually rules, this case – brought, as in Australia, by the tobacco industry – is on an inevitable road to the Supreme Court, where the current majority’s solicitude for the free speech rights of corporations makes it likely that the F.D.A. rule is doomed. Not long ago, the notion that the government can’t “compel speech” served principally to vindicate individual freedom, as in a 1977 Supreme Court decision holding that Jehovah’s Witness residents of New Hampshire couldn’t be required to carry the state’s motto, “Live Free or Die,” on their cars’ license plates. Now, the compelled-speech doctrine is mainly an arrow in the quiver of First Amendment doctrines available for the courts to use as tools of deregulation.

I’ve been thinking a lot about the First Amendment lately because I find its current state to be such a puzzle. Last November, when I read Judge Leon’s opinion in an earlier chapter of the F.D.A. case, a preliminary injunction that blocked the cigarette packaging rule from taking effect, I thought the judge couldn’t possibly be right. Then I thought further and realized that the way things have been going in First Amendment land, there was actually very little prospect that he was wrong. (As evidence of how perilous the regulatory landscape has become, just last month, a consumer protection rule issued by the Department of Transportation requiring airline print advertisements to display the total fare, including taxes and fees, in bigger type than other fare information narrowly escaped invalidation on First Amendment grounds, in a 2-to-1 ruling of the federal appeals court in Washington, D.C. )

And then we come to the First Amendment and abortion. Last month, a 7-to-4 decision of the full United States Court of Appeals for the Eighth Circuit upheld a South Dakota law that requires doctors, under the rubric of “informed consent,” to warn abortion patients that the procedure places them at “increased risk of suicide ideation and suicide.”

This is an astonishing legal mandate. There is, in fact, no reputable scientific evidence that abortion as a general matter harms women’s mental health. Because the allegation that it does is even more common than the assertion that a woman’s body will refuse to become pregnant as the result of rape, the scientific community has studied the issue intently. Four years ago, the American Psychological Association’s task force on mental health and abortion scrutinized dozens of peer-reviewed scientific papers and issued a 93-page report concluding that “among women who have a single, legal, first-trimester abortion of an unplanned pregnancy for nontherapeutic reasons, the relative risks of mental health problems are no greater than the risks among women who deliver an unplanned pregnancy.”

Earlier, the American Psychological Association’s brief in a 1989 Supreme Court case, Webster v. Reproductive Health Services, informed the justices that not only do “the great majority of women who have had an abortion express feelings of relief,” but that abortion can cause “positive psychological changes” including “feelings of increased self-directedness, autonomy, and efficiency.” (How’s that for political incorrectness in today’s climate: abortion can even be good for women who have never before taken charge of their own lives.) And, of course, to think logically about this issue, abortion is one of the most commonly performed operations, and nearly one in three American women will have an abortion by the age of 45. Given the more than one million abortions a year, if the suicide myth was true, a breathtaking number of women of reproductive age would be taking their own lives.

So how did the Eighth Circuit’s Republican-appointed majority (yes, all seven) reconcile the scientific evidence and the agenda-driven statute that compels doctors to utter an untruth? Simple: by reinterpreting the statute as not saying what it clearly implies. The “increased risk” script that doctors have to recite doesn’t require them to say that abortion causes an increased risk of suicide, the majority said. It just means that there is some evidence that for some women, abortion correlates with an increased risk. (Compared to which women? To those not burdened with a crisis pregnancy in the first place? To those without preexisting depression or another psychiatric condition? To those without disordered lives that eventually brought them to the abortion clinic’s door? The majority doesn’t bother with such details: “We hold only that the state legislature, rather than a federal court, is in the best position to weigh the divergent results and come to a conclusion about the best way to protect its populace.” So much for evidence-based judging in the face of evidence-based medicine.)

The Supreme Court addressed informed-consent requirements for abortion in its 1992 decision, Planned Parenthood v. Casey, which held that the state can’t place an undue burden on a woman’s right to terminate a pregnancy. It’s not an undue burden, the court said then, for the state to require doctors to describe abortion, its consequences, and its alternatives, as long as the information is truthful, nonmisleading, and relevant to the woman’s choice. Those words have proven elastic in the hands of some judges, leaving the meaning of the Casey opinion very much up for grabs. The judges in the majority in the South Dakota case concluded that because the statute as they reinterpreted it could be seen as requiring the recitation of truthful and nonmisleading information it, the suicide “advisory” mandate was not an undue burden.

Writing for the four dissenters, Judge Diana E. Murphy, at age 78 the only woman ever to have sat on the Eighth Circuit, said the statute fell far short of the standard the Supreme Court set in Casey. The record showed that “abortion does not have a causal relationship to the risk of suicide and that South Dakota’s mandated advisory is not truthful, but actually misleading,” she said. The statute therefore was not only an undue burden on a woman’s right but also “violates the physicians’ First Amendment right against compelled speech,” Judge Murphy concluded.

So that’s where we seem to be. The government can’t require tobacco companies to display the truth about their products, while it can compel doctors to intone pseudo-scientific mumbo-jumbo designed to scare women out of exercising their constitutional right to terminate a pregnancy. Whatever happened to the First Amendment?

Once upon a time, it was liberals who seemed to love the First Amendment. It’s a commonplace now to observe that the First Amendment’s ideological valence has flipped. Actually, the status of the First Amendment is a good deal more complicated. For the annual meeting of the American Political Science Association in New Orleans next week, three political scientists, Lee Epstein, Christopher M. Parker, and Jeffrey A. Segal, have submitted a study based on all the Supreme Court’s First Amendment decisions from 1946 through June of last year. The study’s goal was to determine whether the assumed ideological realignment had actually occurred. The answer, the authors concluded, was no. All justices, right and left, embrace the First Amendment when it serves their purposes and reject it when it doesn’t, and have done so for a long time.

“In a nutshell,” they write, “justices are opportunistic free speechers, willing to turn back regulation of expression when the expression conforms to their values and uphold it when the expression and their preferences collide.” The political scientists offer reams of data to support their conclusion, which sounds like common sense but that actually flies in the face of much academic high theory: “Justices are much less apt to defend the speech (and speakers) they dislike than the expression they like.”

In other words, maybe it’s time to stop looking for free-speech consistency and to acknowledge that most justices are no different from most of us. We all love the First Amendment – when it suits us.

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Linda Greenhouse, the winner of the 1998 Pulitzer Prize, writes on alternate Thursdays about the Supreme Court and the law. She reported on the Supreme Court for The New York Times from 1978 to 2008. She teaches at Yale Law School and is the author most recently of the book “The U.S. Supreme Court: A Very Short Introduction,” as well as a biography of Justice Harry A. Blackmun, “Becoming Justice Blackmun.” She is also the co-author, with Reva B. Siegel, of “Before Roe v. Wade: Voices That Shaped the Abortion Debate Before the Supreme Court’s Ruling.”